The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, finding that the Respondent violated section
7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute
(the Statute) by refusing to afford representation to an employee at an
examination in connection with an investigation under section 7114(a)(2)(B) of
the Statute. Both the Respondent and the Charging Party filed exceptions to the
Judge's decision. The General Counsel and the Charging Party filed oppositions
to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the Judge made
at the hearing and find that no prejudicial error was committed. We affirm
those rulings. Upon consideration of the Judge's decision, the exceptions, and
the entire record, we adopt the Judge's findings, conclusions, and
recommendations, only to the extent consistent with this decision.

II. Background and Judge's Decision

On February 21, 1992, a probationary registered nurse was
separated from her employment with the Respondent. Prior to the employee's
separation, a peer review hearing was held by a Nurse Professional Standards
Board (NPSB) to discuss the incident that led to her termination. The employee
was advised that she was not entitled to union representation at the hearing.
The record shows that the employee appeared at the hearing without such
representation.

The Judge found that the Authority's decision in Department of
Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi,
48 FLRA 787 (1993) (VAMC I) was dispositive of the issues
raised in this case. The Judge's decision was issued prior to the Authority's
reconsideration of VAMC I in Department of Veterans Affairs,
Veterans Affairs Medical Center, Jackson, Mississippi, 49 FLRA 171
(1994) (VAMC II), reconsideration denied, 49 FLRA 701 (1994)
(VAMC III), petition for review filed, No. 94-40347 (5th Cir.
Apr. 26, 1994). In VAMC I, the Authority found a violation of
the Statute based on the refusal to allow a union representative to speak or
otherwise participate in NPSB meetings involving probationary registered
nurses. The Authority rejected a number of arguments advanced by the Department
of Veterans Affairs (Department) in finding, among other things, that the NPSB
meetings were examinations covered by section 7114(a)(2)(B) of the Statute.

In this case, the Judge concluded, for the reasons more fully expressed
in VAMC I, that the Respondent violated section 7116(a)(1) and (8)
of the Statute when it refused to allow a Union representative to participate
at the employee's NPSB hearing. As a remedy, the Judge ordered the Respondent
to repeat the NPSB review, on request of the Union, and to make the employee
whole if warranted by the outcome of the hearing. The Judge rejected the
Charging Party's request to reinstate the employee to her position.

III. Positions of the Parties

A. Charging Party's Exceptions

The Charging Party excepts only to the Judge's failure to order
reinstatement of the employee. The Charging Party maintains that under the
Fifth Amendment to the U.S. Constitution, a Federal employee whose removal is
predicated on a failure to comply with procedural requirements contained in law
or regulation is entitled to reinstatement with backpay. According to the
Charging Party, the failure to comply with section 7114(a)(2)(B) of the Statute
deprived the employee of due process and, essentially, created the entitlement
to reinstatement. The Charging Party also requests the Authority to reverse its
precedent holding that reinstatement orders are not appropriate remedies for
violations of section 7114(a)(2)(B) of the Statute.

B. Respondent's Exceptions

The Respondent asserts that the Authority's decision in
VAMC I was erroneous and, in support, incorporates the arguments it
made in its request for reconsideration of VAMC I.

C. Oppositions to Respondent's Exceptions

1. General Counsel

The General Counsel maintains that the Respondent's arguments were
rejected by the Authority in VAMC I and should be rejected
here.

2. Charging Party

The Charging Party, whose opposition was filed after the Authority
issued VAMC II, claims that the Authority committed "errors" in
that decision. Charging Party's Opposition at 2. Essentially, the Charging
Party argues that the right to representation is a fundamental right unrelated
to collective bargaining and, as such, "is not constrained by any of the
restrictions on the scope of bargaining--whether found in 38 U.S.C.
§ 7422(b) or 5 U.S.C. § 7106(a)." Id.
at 11. The Union further argues that the Department has a mandate to
respect the fundamental rights recognized in the Statute, including the right
established by section 7114(a)(2)(B), and that "this specific mandate
supersedes the . . . general right to prescribe regulations on matters
affecting working conditions." Id. (footnote omitted). Accordingly, the
Charging Party requests the Authority to affirm the Judge's decision, except
for modifying the remedi